The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
After a lengthy trial, the jury convicted defendant Alfred Sanchez of four counts of mail fraud in connection with an allegedly fraudulent hiring and promotion scheme involving departments of the City of Chicago, particularly the Department of Streets and Sanitation of which Sanchez was the Commissioner. The jury also convicted defendant Aaron Delvalle of the single count of perjury with which he was charged, resulting from his grand jury testimony about his role in the hiring scheme.
Defendants have filed post-trial motions seeking acquittal based on a lack of sufficient evidence to convict, and requesting a new trial on a number of grounds, the most serious of which involves an alleged failure by the government to disclose impeachment evidence concerning one of its witnesses in violation of the standards established by Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.*fn1 Because the court has concluded that defendants are entitled to a new trial due to the Brady violation, there is no need to address the other issues raised by defendants in their post-trial motions at this time.
Defendant Sanchez held a number of full-time salaried positions with the City of Chicago ("City") from 1989 through June 2005, including First Deputy Director of the Mayor's Office of Inquiry and Information ("I&I") prior to 1995, and Commissioner of the Department of Streets and Sanitation ("Streets & Sanitation") from June 1999 through June 2005. Streets & Sanitation was the department with the largest number of employees in the City. Sanchez was also a high ranking official in the Hispanic Democratic Organization ("HDO"), a political organization that, among other activities, supported candidates favored by Mayor Richard M. Daley, who held office during the relevant period, and his political allies. Delvalle was a younger, active member of HDO and an employee at Streets & Sanitation, working closely with Sanchez, who was a sort of mentor to him.
The indictment charged Sanchez, along with a number of unindicted individuals (including Delvalle in the mail fraud counts) with engaging in "a scheme and artifice to defraud the people of the City, applicants for City jobs, and the City, of money, property and the intangible right to the honest services of Sanchez and other City employees" through a "systematic effort to provide public financial benefits, in the form of City jobs, promotions, and other job-related benefits . . . in order to induce and reward campaign work to benefit HDO and other private political organizations." Simply put, the alleged scheme involved manipulating the City's hiring and promotion process to reward with City jobs individuals who worked effectively for HDO and contributed money and favors to Sanchez, all of which is prohibited by an array of City ordinances and state laws. Such "patronage" activities are also prohibited by a civil consent decree continuing to be enforced by another judge of this court in the case of Shakman v. The Democratic Organization of Cook County, 69 C 2145 (the "Shakman Decree"). The mail fraud counts against Sanchez are based on nine discreet mailings caused by Sanchez that contained various false information connected to the fraudulent hiring scheme.*fn2
The government presented a number of witnesses and documentary evidence to demonstrate that Sanchez knew of and took part in a wide-spread scheme in which individuals who performed political work on behalf of the Democratic Party in Chicago were rewarded with jobs and promotions at the expense of applicants and employees who were not part of the program. Witnesses testified that before he became Commissioner of Streets & Sanitation in 1999, Sanchez was a willing functionary in the scheme, in which the Mayor's Office of Intergovernmental Affairs ("IGA") was used improperly to hire certain individuals who performed political work through the HDO and other political entities. The scheme involved the use of false rating reports approved or directed by Sanchez and others at IGA and I&I in violation of the Shakman Decree.
According to a number of government witnesses, after becoming head of Streets & Sanitation Sanchez used his position as Commissioner to direct his subordinates, including defendant Delvalle, to reward HDO volunteers with City jobs in return for their political work on behalf of the Democratic Party and its candidates.
Sanchez's principal defense was based on evidence, including his own testimony, that he was a hard-working, hands-on Commissioner of Streets & Sanitation who never intended to cheat the government of his honest services or to hire or promote anyone who was not qualified.
Without denying that he was aware that certain people whom he recommended or approved to be hired were also active members of HDO, Sanchez vigorously denied that their political activities played any part in the hiring decisions.
The evidence supporting the government's charge that Delvalle committed perjury in testifying before the grand jury related to the questions put to him regarding his political activities at HDO and his role in the scheme as one of Sanchez's top aides at both Streets & Sanitation and HDO. Several witnesses testified that Delvalle played a central role in getting City jobs for people who were recommended because of their political work by participants in the scheme. Delvalle's principal defense was based on evidence, including his own testimony, that he was merely and innocently following the lead of his superiors, and that his involvement with HDO-related hiring was limited to checking a "lottery list" of applicants when HDO coordinators inquired about the hiring status of HDO volunteers. Delvalle went to great lengths to establish his bona fides as a clean cut, hard-working young man whose political activities were largely divorced from his work for the City at Streets & Sanitation.
The Brady violation involves the testimony of one of the government witnesses, Brian Gabriel ("Gabriel"), a "motor truck driver" who began working at Streets & Sanitation in 2000. Gabriel testified that he joined HDO as a "foot soldier" in 1998 in order to get a job with the City, a goal that he had been unable to achieve prior to working for HDO. He was directed by HDO coordinators, including Delvalle, to participate actively in a number of political campaigns chosen by HDO. Although he did not have direct contact with Sanchez, he testified to knowledge that jobs were rewarded through a "chain of command" reaching from HDO coordinators, including Delvalle, to Sanchez. Gabriel was the first witness to use this phrase, which the government used repeatedly in its opening statement and closing argument to describe how Sanchez directed political hiring through his subordinates.
Gabriel also testified that he heard Sanchez tell a group of political volunteers that "hard work deserves reward." When asked by the prosecutor what this meant, Gabriel stated that he understood Sanchez to mean that working for HDO "would be rewarded with either employment or a promotion or whatever." Gabriel was the only witness to put such incriminating words directly into Sanchez's mouth. Gabriel also testified that he bought $1,200 in tickets for political events from John Resa, an HDO operative who had arranged to get Gabriel his first City job as a seasonal motor truck driver*fn3 by giving a copy of Gabriel's CDL and his application receipt to Sanchez. Gabriel also testified that he gave Sanchez personal gifts, including a box of cigars and one or two hundred dollars in cash, and that Sanchez never thanked him.
With respect to Delvalle, as mentioned above, Gabriel testified that Delvalle was an HDO coordinator in the "chain of command." In addition, over Delvalle's objection, Gabriel testified about an altercation that he had with Delvalle that led to Gabriel's cutting his ties with HDO. The altercation occurred because Delvalle, who was married with children, allegedly made passes at Gabriel's fiancee at an event.
In preparing for trial, Brian Etchell, the FBI case agent working with the Assistant U.S. Attorneys ("AUSAs") prosecuting this case, conducted a criminal background check, including an "ACS"*fn4 check on Gabriel in December 2008, several months before the trial began on March 3, 2009. An ACS check is an electronic search of the FBI database to determine whether a person is currently under criminal investigation. Although the criminal background check on Gabriel disclosed a 1989 burglary conviction (which the prosecution disclosed to defense counsel) and 18 arrests, including one for drug dealing in 2005 (which the prosecution did not disclose to defense counsel), it did not disclose any current criminal investigation involving Gabriel.
Prior to the beginning of the trial on March 3, 2009, AUSA Steven Grimes and Chicago FBI agents interviewed Gabriel on two occasions (February 5 and February 25, 2009) to prepare him for his testimony. At the latter meeting, Agent Etchell asked Gabriel about each arrest listed on his "rap sheet," and the information revealed on the rap sheet led Agent Etchell to ask Gabriel whether he had been in a gang. Gabriel stated that he had been a member of the Spanish Vice Lords a long time ago, but that he was no longer affiliated with a gang and had put that life behind him when he became a father. Although, as mentioned above, the government disclosed Gabriel's burglary conviction to the defense prior to trial, for some reason it did not disclose Gabriel's prior arrest record or gang activity even though it was the arrest record that led to the discovery of the gang activity. Nor did the government follow up with any other investigation, including an ACS check, prior to Gabriel's testimony at the trial on March 9, 2009.
Unbeknownst to the prosecutors or case agents in the instant case, at the very time they were interviewing Gabriel, and indeed at the very time Gabriel testified at trial, he was under investigation by the "Illiana Gang Task Force," ("Illiana Task Force"), which was comprised of local law enforcement officers from Indiana and Illinois, including Chicago Police Department officers, as well as FBI agents located in northern Indiana. As it turns out, Gabriel had lied to AUSA Grimes and the FBI agents involved in the prosecution of the instant case when he denied current gang activities.*fn5 In fact, in February and March 2009 Gabriel was a high ranking member of the Spanish Vice Lords, a violent Chicago street gang, and, on or about February 8, 2009 (a month and a day before he testified in the instant case), he had been so identified by a confidential informant ("CI") to the FBI in the Northern District of Indiana's Gang Response ...